Consolidated Freightways Corp. of Delaware v. Futrell

• Decision Date: 03 September 1991
• Docket Number: No. A91A0841,A91A0841
• Citation: 410 S.E.2d 751,201 Ga.App. 233
• Parties: CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. FUTRELL et al.
• Court: Georgia Court of Appeals

Page 751

410 S.E.2d 751

201 Ga.App. 233

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. FUTRELL et al.

No. A91A0841.

Court of Appeals of Georgia.

Sept. 3, 1991.

Reconsideration Denied Sept. 19, 1991.

Certiorari Denied Nov. 1, 1991.

Neely & Player, Edgar A. Neely, Jr., Richard B. North, Jr., Kurt N. Peterson, Atlanta, for appellant.

Cuffie & Smith, Thomas F. Cuffie, Rufus Smith, Jr., Atlanta, for appellees.

ANDREWS, Judge.

Donnell Lathon and Nora Lathon, husband and wife, were killed in an automobile crash with a Consolidated Freightways truck. This wrongful death action was brought by the plaintiffs on behalf of the minor child of Donnell Lathon and the minor children of Nora Lathon. Consolidated appeals from the jury verdict and judgment in favor of the plaintiffs.

1. In enumeration one, Consolidated contends the trial court erroneously allowed the jury to consider evidence that Donnell Lathon received veteran's disability benefits in reaching their determination on damages. In a wrongful death action damages may be awarded for the full value of the deceased's life. OCGA §§ 51-4-2, 51-4-1. Generally, these damages may be categorized as: (1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value (Elsberry v. Lewis, 140 Ga.App. 324, 327, 231 S.E.2d 789 (1976); Bulloch County Hosp. Auth. v. Fowler, 124 Ga.App. 242, 247, 183 S.E.2d 586 (1971); City of Macon v. Smith, 117 Ga.App. 363, 374-375, 160 S.E.2d 622 (1968)), or (2) lost intangible items whose value cannot be precisely quantified, such as a parent's "society, advice, example and counsel ..." as determined by the enlightened conscience of the jury. City of Macon, supra; Collins v. McPherson, 91 Ga.App. 347, 349, 85 S.E.2d 552 (1954). In assessing economic damages having proven monetary worth, " 'the courts have uniformly held that the decedent's income from a pension, retirement plan payments, social security benefits, and other receipts of like nature, [are] considered, along with other relevant factors, in substantially the same manner as actual earnings in the calculation of pecuniary loss for the purpose of determining the recovery.' [Cit.]" Miller v. Tuten, 137 Ga.App. 188, 191, 223 S.E.2d 237 (1976).

Consolidated argues that the economic component of damages can only be derived from lifetime loss of earnings generated by the decedent's services. Thus, evidence of pension, retirement benefits and social security is admissible as items derived from services rendered by the decedent, whereas evidence of disability benefits is excluded because it is compensation for a disability and unrelated to services rendered by the decedent. We disagree with this limited view of disability benefits, and find no error in the admission of the decedent's veteran's disability benefits in proving the economic component of the full value of his life. Regardless of whether compensation paid to a veteran for disability is characterized as arising from services rendered by the decedent, or as compensation for a disability, the benefits constitute readily provable income of the decedent which ceased because of his death. The trial court properly admitted this evidence.

2. Consolidated claims the jury verdict awarding damages of $1,000,000 as to Nora Lathon and $800,000 as to Donnell Lathon for the intangible component of the full value of their lives was excessive, and should be set aside on appeal. "The general rule on appeal of an award of damages is that the jury's award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to 'shock the conscience.' ... Moreover, the trial court's approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence." (Citations omitted.) Cullen v. Timm, 184 Ga.App. 80, 82-83, 360 S.E.2d 745 (1987). " 'After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.' [Cit.]" McKinney & Co. v. Lawson, 257 Ga. 222, 224, 357 S.E.2d 786 (1987).

There was evidence upon which the jury could base an award for loss of intangible aspects of the decedents' lives. Testimony was given concerning the character and family circumstances of the decedents, and there was evidence, though scant, of the decedents' relationships with their respective children. In considering this evidence in light of their own experience and knowledge of human affairs, and governed by their enlightened conscience (City of Macon, supra 117 Ga.App. at 375, 160 S.E.2d 622; Collins, supra 91 Ga.App. at 349, 85 S.E.2d 552) we cannot say the jurors' verdict shocks the conscience, nor is there any clear indication the jury was biased, prejudiced or grossly mistaken. The award was not, as a matter of law, excessive. Calloway v. Rossman, 150 Ga.App. 381, 386, 257 S.E.2d 913 (1979); Blue's Truck Line v. Harwell, 59 Ga.App. 305, 310, 200 S.E. 500 (1938); Georgia Railway & Power Co. v. Shaw, 25 Ga.App. 146, 147, 102 S.E. 904 (1920).

3. In its third enumeration of error, Consolidated claims the trial court erred in admitting testimony regarding the decedents' religious activities. Generally, evidence of a decedent's church activities and religious beliefs are not relevant to prove pecuniary loss in a wrongful death action. Atlantic Coast Line R. Co. v. Daugherty, 116 Ga.App. 438, 444, 157 S.E.2d 880 (1967); OCGA § 24-2-2. However, such evidence may be relevant as an aspect of the intangible element of the full value of the life of a deceased. In proving the nature and extent of intangibles lost by a deceased as the result of a destroyed relationship, the decedent's religious beliefs or church activities may be relevant, along with other circumstances of life, to the extent they help the jury determine the loss from the standpoint of the deceased. The plaintiffs presented evidence that the decedents' religious activities were an important and stabilizing aspect of their lives. The defendant introduced testimony from a psychiatrist that Donnell Lathon had been diagnosed as suffering from chronic paranoid schizophrenia with religious preoccupation and delusions. It was up to the jury to consider the effect of this evidence upon the value of the non-economic elements of the deceaseds' lives. We find no error in admission of this evidence under the facts of this case.

4. In its fourth enumeration of error, Consolidated contends there was no evidence to support the jury's finding that it was liable for the deaths. For this court to reverse the jury verdict in favor of the plaintiffs would require the absence of any evidence of the defendant's liability for damages. Denny v. D.J.D., Inc., 188 Ga.App. 431, 433, 373 S.E.2d 383 (1988). "[W]here a verdict has been returned by the jury and approved by the trial judge, the evidence is to be construed in the light most favorable to the prevailing party, and every presumption and inference is in favor of sustaining the verdict." Perfect Image v. M & M Elec. Constructors, 191 Ga.App. 605, 607-608, 382 S.E.2d 405 (1989). Construed under this standard, there was evidence supporting the verdict that Donnell and Nora Lathon were killed as the proximate result of the negligent operation of Consolidated's truck as it collided with the rear of the decedents' vehicle.

5. Consolidated claims the trial court erred by refusing to instruct the jury that "the mere fact the [decedents'] vehicle was struck in the rear by [Consolidated's vehicle] is insufficient to fix liability on the defendant." The charge, as requested,...